Citation Nr: 9823946
Decision Date: 08/06/98 Archive Date: 07/27/01
DOCKET NO. 93-26 085 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for a back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Wm. Kenan Torrans, Associate Counsel
INTRODUCTION
The appellant served on active duty from May 1977 to November
1977, and from February 1980 to March 1980. In addition, the
appellant served on active duty for training (ACDUTRA) with
the Army Reserve from approximately May 18, 1985 through June
1, 1985.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from rating decisions from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida, which denied the appellant's claim
for service connection for a back disorder. The Board
remanded the case to the RO for further development in
September 1995. The case has once again been referred to the
Board for resolution.
REMAND
The appellant's service medical records from his periods of
active duty are negative for any indication of a back
disorder. A review of his claims file reveals that he first
injured his lower back in December 1984 while working as a
nursing assistant, by attempting to lift a patient out of
bed. The appellant was seen in December 1984 by James E.
Striker, M.D., who noted that the appellant had decreased
forward flexion and tenderness in the lumbosacral region. X-
ray results did not indicate any abnormalities or defects.
Dr. Striker offered his opinion that the appellant had
sustained a lumbosacral strain, and that he was totally
disabled for approximately two weeks. Dr. Striker authorized
the appellant to return to work in early February 1985.
In February 1985, while attempting to lift the same patient
out of bed, the appellant sustained an additional injury to
his lower back. He was seen once again by Dr. Striker, who,
in a medical treatment record dated in February 1985, offered
his opinion that the appellant appeared to be prone to back
injuries, and advised that the appellant consider finding a
job that did not require heavy lifting. As before, the X-ray
results did not indicate any abnormalities or other defects.
A copy of the appellant's military orders, dated in April
1985, indicates that he was ordered to attend active duty for
training (ACDUTRA) with his Army Reserve unit from May 18
through June 1, 1985. A copy of a military medical profile
form dated May 14, 1985, stated that while on ACDUTRA during
the above period, the appellant was to perform his physical
duties within the limitations as set forth by Dr. Striker.
These limitations included a 30-lb weight lifting limit.
However, the profile authorized the appellant to participate
in the Army standard PT test, consisting of sit-ups, push-
ups, and a two-mile run.
A military medical treatment record dated on May 25, 1985
indicates that the appellant was diagnosed as having
sustained a lumbosacral strain during his ACDUTRA, and that
he had been previously diagnosed as having a lumbosacral
sprain. An additional treatment record, also dated on May
25, 1985, indicates that the appellant had a week-long
history of low back pain, and included a diagnosis of
mechanical low back pain, secondary to strain. A treatment
record dated in September 1985 indicates that the appellant
complained of low back pain radiating to his buttocks, which
was aggravated by exercise and bending. The record also
indicates that the appellant's back problem was then under
investigation, and that he was being treated by Dr. Striker.
The remaining service medical records are primarily devoted
to the appellant's weight control and diet control programs.
The appellant continued to complain of back pain, and in
April 1986, he underwent a CT scan of his lower back and an
MRI examination, performed by Bryan Bilfield, M.D., and
Steven P. Smith, M.D., both of which showed that he had a
small herniated nucleus pulposus at L5-S1. The remainder of
his back was normal in all other respects. However, in July
1986, the veteran underwent an Army Reserve re-enlistment
physical examination, in which he specifically indicated that
he did not then experience any problems with his back,
including back pain.
The report of the most recent VA medical examination, dated
in June 1997, which was conducted pursuant to the Board's
remand of September 1995, included an opinion by the
examining physician that, based on his examination and review
of the appellant's claims file, the appellant did not appear
to have a new injury. The examiner indicated that the injury
the appellant had incurred while on ACDUTRA in May 1985 was
rather an exacerbation of his old injuries sustained in
December 1984 and February 1985. In addition, the examiner
also indicated that the appellant demonstrated chronic
degenerative disc disease at L5-S1, which was confirmed by
the X-ray results.
38 U.S.C.A. § 1153 (West 1991) provides, in pertinent part,
that a preexisting injury or disease will be considered to
have been aggravated by active military service, where there
is an increase in disability during such service, unless
there is a specific finding that the increase in disability
is due to the natural progress of the disease. See
38 U.S.C.A. § 1153. Here, it is unclear from the report of
the June 1997 VA examination whether the examiner's opinion
that the appellant's preexisting back injuries were
exacerbated by his May 1985 injury incurred while on ACDUTRA,
was intended to mean that his prior injuries were permanently
aggravated, or if they were temporarily exacerbated by the
May 1985 injury. In order for the Board to make a proper
determination as to whether or not the veteran's back
disorder was permanently aggravated by the injury incurred
while on ACDUTRA for purposes of establishing service
connection, further clarification of the June 1997 diagnosis
is necessary.
It is therefore the opinion of the Board that the appellant's
claims file be referred to the physician who performed the
June 1997 VA examination, and that the appellant be afforded
an additional orthopedic examination to specifically
determine whether his pre-existing back disorder, as
currently manifested and diagnosed, had been aggravated by
the May 1985 injury. In this respect, the examiner is
requested to state whether any increase in disability is due
the natural progress of the preexisting injury, consistent
with the language of 38 U.S.C.A. § 1153. In order to be able
to properly evaluate the veteran's back disorder, the
examiner should review his claims file prior to conducting
the examination.
Accordingly, in order to afford the veteran every
consideration with respect to the present appeal, it is the
Board's opinion that further development of the case is
necessary. Therefore, the case is REMANDED for the following
action:
1. The appellant should be provided a VA
orthopedic examination by the same
physician who conducted the June 1997 VA
examination, to determine whether the
appellant's pre-existing back disorder
was permanently aggravated by the injury
sustained while on ACDUTRA in May 1985.
Specifically, the examiner is requested
to determine whether or not the
appellant's back disorder, as currently
diagnosed, is the product of the natural
progress of that disorder, or if it had
been aggravated by the May 1985 injury.
Any and all indicated tests, evaluations,
and studies deemed necessary by the
examiner should be accomplished. In
addition, the appellant's claims folder
should be provided to the examining
physician for review prior to conducting
the physical examination. As stated, the
examiner is specifically requested to
offer an opinion as to whether the
appellant's pre-existing back disorder
was permanently aggravated by his May
1985 injury, or whether, based on his
review of the medical evidence and the
results of the physical examination, it
was temporarily exacerbated by that
injury. If it is found that the current
status of the appellant's back disorder
is the result of the natural progression
of the pre-existing back disorder, or
aggravation of the disorder in May 1985,
the examiner should so state, consistent
with the provisions of 38 U.S.C.A.
§ 1153. The examiner should clearly
express the rationale upon which his
opinion is based.
2. Upon completion of the above
requested development, the RO should then
readjudicate the appellant's claim for
service connection for a back disorder,
taking into account all relevant statutes
and regulations. If the action taken is
adverse to the appellant, he and his
representative should be furnished with a
supplemental statement of the case that
contains a summary of the relevant
evidence and a citation and discussion of
the applicable laws and regulations. The
appellant should also be afforded the
opportunity to respond to the
Supplemental Statement of the Case before
the claim is returned to the Board for
additional review.
The purpose of this remand is to obtain additional
evidentiary development, and the Board does not intimate any
opinion as to the merits of this case, either favorable or
unfavorable, at this time. The appellant is free to submit
any additional evidence he desires to have considered in
connection with the current appeal. No action is required of
the appellant until he is further notified.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).